A federal appeals court ruled that a trial judge has no authority to order a search of a juror’s cell phone in a post-verdict Remmer hearing. A juror’s right to privacy is given great deference even when that juror is suspected of misconduct during the trial. ABA Litigation Section leaders cite practical realities of juror exposure to social media and agree with the court’s concerns about encroaching on juror privacy rights.
February 21, 2023 Top Story
Juror’s Cell Phone Not Subject to Search
Court has no authority to search juror’s devices for evidence of misconduct
By Steven B. Chaneles
Remmer Hearing in the Criminal Trial
In re Sittenfeld involved a federal criminal jury trial resulting in the defendant’s conviction. During jury deliberations, the court learned that one of the jurors had been posting on her private Facebook page during the trial about her jury service. The defendant moved for a mistrial arguing that the postings amounted to jury misconduct which warranted a new trial. The court denied the motion, but the parties and court agreed to conduct a Remmer hearing to question jurors.
Under Remmer v. United States, a defendant may be entitled to a post-verdict hearing to determine whether any extraneous communications resulted in actual prejudice to the verdict, thereby depriving the defendant of the Sixth Amendment right to a fair trial by an impartial jury. The U.S. District Court for the Southern District of Ohio conducted such a Remmer hearing and heard testimony from certain jurors.
Following the hearing, the district court judge ordered the juror who made the postings to preserve any electronic communications related to her jury service. When advised of the order, the juror responded that she had already deleted the posts. The defendant then moved for leave to conduct a forensic examination of the juror’s cell phone. The district court denied the request on the grounds that it lacked legal authority to order that search. The defendant appealed by filing a motion with the U.S. Court of Appeals for the Sixth Circuit for an emergency order to direct the district court to order the forensic examination.
No Authority to Order a Search of Juror’s Devices
The appellate court affirmed the district court’s ruling denying the request for the search of the juror’s cell phone. Although the Sixth Circuit previously affirmed a search of a juror’s cell phone and laptop computer in the related cases United States v. Lanier (Lanier I), United States v. Lanier (Lanier II), and United States v. Lanier (Lanier III), that search was done with the juror’s consent and not compelled. As a result, the Sixth Circuit framed the threshold question as whether any legal authority existed for a court to compel such a search from a juror.
The court answered that question in the negative, confirmed by its own research because both the defendant and the government offered no other authority. The court observed that a defendant’s Sixth Amendment rights are sufficiently safeguarded by the questioning permitted in a Remmer hearing conducted in accordance with Rule 606(b)(2) of the Federal Rules of Evidence. Even if authority existed for the search, the Sixth Circuit stated in dicta that the trial court would not have abused its discretion in denying the search because it found credible the juror’s testimony that she did not access outside information about the case notwithstanding the Facebook posts.
Following that analysis, a juror’s cell phone or social media communication alone may not be sufficient misconduct to support a mistrial. “Defense counsel did all that he could to obtain evidence favorable to his client, but the court found that there was no undue influence based on the testimony and the evidence before it, so there was no need to proceed further,” notes Warrington Parker, San Francisco, CA, immediate past cochair of the Litigation Section’s Criminal Litigation Committee.
The concurring opinion agreed that the search should have been denied. However, because the matter was presented on an emergency motion (with more limited briefing and an accelerated oral argument schedule), the concurring judge was concerned with what could be perceived as the court’s limitation of a trial judge’s discretion in conducting a Remmer hearing. “I don’t know that there will be a circumstance that requires a more searching inquiry of a juror, but I would not foreclose that as something that might happen,” concurs Parker.
Juror Privacy Must Be Respected
In ruling against a search, the court also expressed concern about the intrusion on a juror’s privacy interests and noted the special status of a juror deserving a level of respect beyond that compared to an ordinary witness. “As a matter of pretrial practice today, it’s a scramble to do social media research for voir dire when a juror list is provided, in part because so many potential jurors have social media access and it’s difficult to control access,” observes Alexander Wharton, Memphis, TN, cochair of the Section’s Criminal Litigation Committee. “A search of this type raises important questions about the rights of jurors such as whether someone give up rights when they serve on a jury, and, if so, what rights they relinquish,” Wharton adds.
Hashtags: #jurytrial; #jurymisconduct, #SixthAmendment, #Remmmer
Resources
- Stephanie Richards, “Dos and Don’ts: Tips for Using Social Media as a Litigation Tool,” Solo & Small Firm (Apr. 22, 2021).
- Onika K. Williams, “No Mistrial over Juror's Facebook Connection with Victim's Sister,” Litigation News (June 7, 2016).
- George B. Curtis, “iWitness: The Jury and the Internet: A New Way of Thinking,” 42 Litigation, Vol. 42, No. 1 (Sept. 1, 2015).
- Renee Choy Ohlendorf, “Ethical Limits on Searching Jurors’ Social Media Sites,” Litigation News, Vol. 40, No. 1 (Fall 2014).
- Judge Herbert B. Dixon Jr., “Guarding Against the Dreaded Cyberspace Mistrial and Other Internet Trial Torpedoes,” Judges’ J., Vol. 49, No. 1 (Winter 2010).
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